Housing Law Bulletin - Issue 328 - 16 October

Wednesday 16 October 2013

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Housing at Garden Court

The Garden Court Housing Team are delighted to have been recommended as a top tier set in the Social Housing chapter of the recently published Legal 500 2013. Described as "the premier set for homelessness and tenant-focused work", nine members of the team are highlighted as leading individuals. For full details, click here.

You can catch two members of the Housing Team (Jan Luba QC and Liz Davies) in action this week at Thursday's national housing Allocation Conference. To get one of the few remaining places, click here.

Housing Law News

Social Housing Allocation: on 14 October 2013 the UK Government issued a new draft Code of Guidance for local housing authorities in England suggesting that they introduce residence qualifications for access to their waiting lists. For the draft Code, click here. Comments are sought by 22 November 2013. It has also issued advice to councils to collect and publish information on the ethnicity and nationality of new tenants. For the advice note, click here. For the policy statement about these moves to prioritise 'local' applicants, click here. For the latest statistics on social housing allocation in England, click here. For more general proposals to reform data-collection and statistics about letting and allocations, click here.

Social Housing Fraud: yesterday (15 October 2013) the Prevention of Social Housing Fraud Act 2013 came into force in England. For the commencement order, click here. For the impact assessment on the Act, click here. For a commentary on the new 'unlawful profit orders' brought in by the Act, click here.

Housing and Anti-social Behaviour (ASB): on 14 October 2013 the Anti-social Behaviour, Crime and Policing Bill began its latest Parliamentary stage (Report Stage in the House of Commons). For the debate, click here. On 11 October 2013 the Joint Select Committee on Human Rights suggested that the Bill be amended so that: (1) the courts take into account the best interests of the child as a primary consideration when deciding measures against children; (2) individuals are not evicted from their homes as a result of a conviction for a riot-related offence; and (3) the drafting is made clearer in relation to: the definition of anti-social behaviour; the legislative tests that are to be applied by courts when imposing anti-social behaviour measures; and the conditions that can be attached to the measures. For its report, click here. For comment on the possible application of the Bill to private tenants, click here. The Metropolitan Police has recently been working with social landlords in London to obtain possession orders in ASB cases. For the details, click here.

Housing Benefit (bedroom tax): a new report from the University of York, Testing DWP's assessment of the impact of the social rented sector size criterion on housing benefit costs and other factors, suggests that real data available from housing organisations since 1 April 2013 does not match key Department of Work and Pensions (DWP) assumptions about claimant behaviour in reaction to the bedroom tax. For a copy of the report, click here. For the National Housing Federation's statement on the impact of the bedroom tax over its first six months, click here. A stream of successful individual appeals against the imposition of the bedroom tax have been determined by first-tier tribunals. For a collection of the decisions to date, click here. For commentaries on them, click here. Responses are needed by this Friday (18 October) to the draft new regulations on disabled claimants and the bedroom tax. For the details, click here.

Housing Benefit (bedroom tax): on 25 September 2013 the proposed Protection from Eviction (Bedroom Tax) (Scotland) Bill was lodged. For the details, click here. In Northern Ireland, the UK Government has decided that the bedroom tax will not apply with full effect. For initial details of the concession, click here.

Housing Benefit (bedroom tax and more): last week the House of Commons Library issued the latest updates to its free Housing Benefit briefing notes. For Measures to reduce Housing Benefit expenditure - an overview, click here. For Housing Benefit: Size Criteria and Discretionary Housing Payments, click here. For Under-occupation of social housing: Housing Benefit entitlement, click here.

Discretionary Housing Payments (DHPs): for the latest DWP circular inviting local authorities to apply for more money from the Discretionary Housing Payment reserve fund, click here. For the background to that invitation, see the October 2013 issue of Housing Benefit Direct. For a copy, click here. The DWP Minister has said that local authorities will not be able to carry forward unspent DHP amounts from the current year to the next. For details, click here. Early returns are showing that some local authorities are under-spending on their DHP budgets, despite increased demand. For details, click here.

Private Rented Sector (1): the House of Commons Library has updated its key briefing notes on private sector renting. For Houses in multiple occupation, click here. For The regulation of private sector letting and managing agents (England), click here. For The Housing Health and Safety Rating System (HHSRS), click here. For Selective licensing of private landlords, click here.

Private Rented Sector (2): on 1 October 2013 the UK Government announced that it would support longer term tenancies for families in the private rented sector, a charter of tenants' rights and a model tenancy agreement. Details of all three initiatives have yet to be developed. For the announcement, click here.

Immigration status of tenants: the Immigration Bill has been published. Part 3, Chapter 1 deals with residential tenancies and will impose penalties on landlords who let to certain classes of migrants. For a copy of the Bill, click here. Commons Second Reading is scheduled for next week. To track progress of the Bill, click here. For commentary on the proposed changes, click here.

Right to Buy Sales: the latest statistics, released on 10 October 2013, reveal an explosion in Right to Buy sales. For the ministerial response, click here. For the full statistical report on social housing sales, click here.

Right to Buy Service Charges: on 7 October 2013 the UK Government announced that it would act to curb 'excessive' service charges levied by councils on leaseholders. For the announcement, click here. For the consultation paper on the necessary legal changes, click here. Responses should be submitted by 18 November.

Housing, Equality and Diversity: the Chartered Institute of Housing (CIH) has published a new free guide on How to...mainstream equality and reflect diversity. For a copy, click here.

Legal aid for housing cases: does a legal aid contract to undertake public law work cover homelessness appeals in the county court? The service provider with the largest public law contract has issued judicial review proceedings in order to get an affirmative declaration. For details, click here.

Housing for Asylum Seekers: on 11 October 2013 the Home Affairs Committee published its report on 'Asylum'. It records a concern with the description of the sub-standard level of housing provided to asylum seekers and states that the length of time it is taking to get problems resolved is unacceptable. For a copy of the report, click here.

Housing Minister: the new Minister for Housing in the UK Government is Kris Hopkins MP. For his details, click here. For a commentary on the large number of recent Housing Ministers, click here.

Updates on Housing Law: for daily housing law news and updates follow the Editor of this Bulletin (Jan Luba QC) on Twitter @JanLubaQC

The Latest Housing Case Law

Fuller digests of most of the cases noted each week in this Bulletin appear in an online, indexed and searchable database edited by Jan Luba QC and called the Case Law Digest. For details of that service, click here.

Moore v Secretary of State for Communities [2013] EWCA Civ 1194
9 October 2013
The claimant and her family were Romany Gypsy Travellers. She owned Green Belt land on which she lived. She applied for planning permission for a "Gypsy and Traveller caravan site comprising one pitch accommodating one mobile home and one touring caravan". The application was refused by Bromley Council and, on appeal, by an inspector appointed by the Secretary of State. The High Court upheld a challenge to that decision, in relation to the refusal of temporary planning permission, and quashed the inspector's decision. The Secretary of State appealed. The Court of Appeal dismissed the appeal. The judge had been entitled to find that the inspector had not fully addressed the likelihood of a "roadside existence" for the family, if even temporary permission were refused, and the implications of that. For the judgment, click here.

Collins v Secretary of State for Communities [2013] EWCA Civ 1193
9 October 2013

The claimant was one of a group of 78 Travellers who had established their homes on agricultural land. Their application for planning permission to use the land as a residential caravan site was refused and an enforcement notice was issued. Appeals against both decisions were dismissed by the Secretary of State. A challenge to that outcome was rejected by the High Court. The claimant appealed on the basis that there had been a failure to have proper regard to the 'best interests' of the children on the site. The Court of Appeal dismissed the appeal. In substance, the Secretary of State had been of the view that the best interests of the children coincided with those of their families as a whole and lay in remaining on the site (because of the general advantages of a settled home and because of the particular considerations of continuity of education and access to health care) but that the children's best interests and the other factors telling in favour of the grant of planning permission were outweighed by the harm that would be caused by such a grant. For the judgment, click here.

Finch v Hall [2013] EWHC (Ch), [2013] All ER (D) 92 (Oct)
9 October 2013

A house was held in trust for four siblings and was let by them to tenants. The four agreed that the property would be sold but only if all four of them agreed to accept an offer to buy. The sitting tenants put in an offer. An estate agent recommended acceptance and three of the siblings agreed to accept. The fourth would not. The majority sought an order of the court sanctioning a sale in order that completion could take effect before the tenants' offer of a mortgage was withdrawn. The High Court refused to make the order. The terms of the agreement were clear. The four had agreed that a sale could only proceed if all were of that mind.

Tolui v Rent Assessment Committee [2013] EWHC (Admin), [2013] All ER (D) 83 (Oct)
8 October 2013

A landlord applied for an increase in the fair rent registered for a property. He sought a rent of £400pw. The committee determined a fair rent of £74.50pw. It held that, in so far as the landlord relied on improvements to justify an increased rent, only improvements since the previous application for an increase could be taken into account. The landlord appealed on the grounds that the committee should have had regard to the cumulative impact of all the improvements he had made, including earlier ones. The High Court dismissed the appeal. The committee had been right as to the limitation on the scope of the improvements it could consider.

Health & Safety Executive v Shaun Johnson
8 October 2013

The defendant landlord removed an old gas boiler and replaced it with a new one but he used the existing flue, which caused an immediate risk of explosion or of poisonous carbon monoxide gas escaping into the house had the boiler been used. He was not a Gas Safe registered engineer and was neither qualified nor legally entitled to work on gas. At Truro Magistrates' Court he pleaded guilty to two breaches of the Gas Safety (Installation and Use) Regulations 1998. He was fined a total of £4,000 and ordered to pay costs of £288. For more details of the prosecution, click here.

Nottingham CC v Tyas [2013] UKUT 492 (LC)
3 October 2013

Following an inspection, the council was satisfied that a tenanted property was a Category 2 hazard and sent an improvement notice, by post, to the landlord with copies to the mortgage lender and the tenants. The copies were received. The landlord denied he had received the original and, when notified that work-in-default would be undertaken, lodged an appeal out of time to the leasehold valuation tribunal (LVT). The LVT decided it had a general discretion whether to extend time and exercised it in the landlord's favour. The Upper Tribunal allowed an appeal. The LVT had applied the wrong approach. The Housing Act 2004 Schedule 1 para 14(3) limited an LVT's power to extend time. The case was remitted for the LVT to apply the correct test. For the judgment, click here.

Ealing LBC v Antonio Ioviera
3 October 2013

The defendant was a private landlord. He owned a three-storey house divided into seven bedsits. Council officers found appalling conditions. The only smoke alarm in the building, accommodating 12 people at a time, had been dismantled and water was leaking from the first floor bathroom into light fittings and the rooms underneath, making the ceiling unsafe and the electrics dangerous. The property was not licensed as an House in Multiple Occupation (HMO) and was seriously defective. The defendant was convicted of 13 property-related offences. Ealing Magistrates' Court ordered him to pay £18,150 in fines, £5,510.01 in costs and a £120 victim charge, making a total of £23,780.01 payable within one month. For details of the prosecution, click here.

Health & Safety Executive v Peter Brown
2 October 2013

The defendant was a self-employed builder engaged by a householder to fit a new kitchen and replace a boiler. A subsequent inspection revealed his work had left the house "immediately dangerous". He was not a Gas Safe registered engineer and was neither qualified nor legally entitled to work on gas. At Colchester Magistrates' Court he pleaded guilty to breaching the Gas Safety (Installation and Use) Regulations 1998. He was fined £10,000 and ordered to pay costs of £4000. For more details of the prosecution, click here.

R v Faisal Latif
1 October 2013

In 1992 the defendant had been a private landlord allegedly having difficulty with his tenants in relation to nuisance, rent arrears and damage to the property. He did not take legal proceedings but tried to get rid of them by other means, including sending hired help to persuade or threaten them to leave. He then set a fire at the house to drive them out. One tenant and her child died. The defendant fled the country but was traced to the USA and extradited 21 years later. At the start of his trial for murder, he pleaded guilty to arson and manslaughter at Stafford Crown Court. He was sentenced to 15 years for manslaughter and 10 years for arson with intent to endanger life, to run concurrently. For details of the prosecution, click here.

Cambridge CC v Akif Karliga
1 October 2013

The defendant was a private landlord. Following a complaint, a council inspection revealed dampness and disrepair. The council served an improvement notice requiring remedial works to be completed within three months. The defendant failed to comply and at trial blamed his managing agent and the tenant. He was found guilty of breach of the notice. Cambridge Magistrates' imposed a fine of £1500 with £2,400 costs. For details of the prosecution, click here.

Forest House Estates Ltd v Al-Harthi [2013] UKUT 479 (LC)
26 September 2013

A tenant's lease required that he provide and maintain good quality carpeting and underlay throughout his flat (with the exception of the kitchen and bathroom). He replaced the fitted carpet with wooden flooring and rungs. The landlord applied to the leasehold valuation tribunal (LVT) for a determination that there had been a breach of the lease. The LVT inspected and found that carpet had been laid once again. It decided there was no breach. The Upper Tribunal allowed an appeal. It decided that the breach may have been temporary, and perhaps even trivial, but it was clearly a breach. The question for an LVT was not whether a breach had been remedied but whether there had been one. For the judgment, click here.

Raj Properties Ltd v Burchell [2013] UKUT 443 (LC)
23 September 2013

A tenant's lease provided that he must "use the flat as a private dwelling for the lessee and his family and for no other purpose". On an application for a new lease, the question arose whether those words precluded him from sub-letting the flat to a person who was not a member of his own family. If they did, could a leasehold valuation tribunal (LVT) vary the covenant so as to permit the sub-letting under the terms of a new lease? The Upper Tribunal held that the covenant did prohibit sub-letting and could not be varied by an LVT to permit sub-letting. For the judgment, click here.

Health & Safety Executive v Stephen Carter and others
18 September 2013

A private landlord engaged three different gas safety engineers to carry out annual gas safety inspections in 2010, 2011 and 2012. All three were GasSafe registered and certified the tenanted property as 'safe'. The tenants complained of feeling unwell and a thorough inspection in 2012 revealed that for some years there had been inadequate ventilation for the fire and back boiler in the lounge, and also that the fire surround was not properly sealed. This meant the products of combustion, including poisonous carbon monoxide gas, could escape into the room. All three engineers pleaded guilty to statutory offences. Each was fined £750 and costs. For details of the prosecutions, click here.

Santander (UK) PLC v Carlin [2013] NI Ch 14
19 September 2013

The lender granted the defendants an interest-only mortgage of their home. Arrears accrued and possession was sought. The defendants took the point that the lender had assigned its interest to another financial institution and that it was no longer entitled to possession. The lender's solicitor swore an affidavit that the interest had not been assigned. A possession order was made. The High Court allowed an appeal and set aside the possession order. The lender's interest had in fact been assigned, the affidavit had not been correct and the lender had failed to comply with the court's directions. For the judgment, click here. For a commentary on the decision, click here.

Southwark LBC v Paul and others [2013] UKUT 375 (LC)
18 September 2013

The council issued service charge demands to leaseholders. In addition to seeking to recover the direct costs of services, the demands sought amounts for 'administration and overheads'. An LVT decided that they were not recoverable. The Upper Tribunal allowed the council's appeal. It held that that the costs and expenses of or incidental to the provision of services under the terms of the lease are not limited to the direct costs of the provision of the services. The indirect costs of providing those services, for example the staff costs and the costs of accommodation in arranging and managing those works, are all part of the costs and are all properly chargeable under the terms of the lease. For the judgment, click here.

R (C) v Kensington & Chelsea RLBC [2013] EWHC 2887 (Admin)
6 September 2013

The claimant had been owed the main housing duty as a homeless person. The council offered her accommodation in Ilford, Essex. She did not consider it suitable. Her appeal against the reviewing officer's decision that the offer was suitable was dismissed by the county court. The Court of Appeal refused permission to appeal that decision. The claimant then sought judicial review of the reviewing officer's decision and interim relief to prevent her eviction from temporary accommodation. Interim relief was refused. Permission to apply for judicial review was refused. A renewed application was dismissed by the High Court. Judicial review was not available in respect of a decision amenable to a challenge under a different procedure and which had been considered under that procedure.

Ford v Cardiff CC [2013] EWHC 2886 (Admin)
29 August 2013

The claimant owned a house in the council's area. It had been empty for many years. It was in poor condition and deteriorating. It was unfit for occupation. The council exercised its powers to make a compulsory purchase order (CPO) with a view to bringing it back into use for housing accommodation. The claimant objected, but an inspector upheld the CPO. The claimant appealed to the High Court contending that there had been procedural unfairness because he had not had a proper opportunity to consider documents that the council relied upon before the inspector. The appeal was dismissed. The inspector had conducted a fair procedure and any deficiency would have had no material effect on the outcome.

Turley's application for judicial review [2013] NIQB 89
15 August 2013

A housing association had agreed to allocate its housing accommodation in accordance with an allocation scheme published by the Northern Ireland Housing Executive. The scheme prioritised applicants by points. The claimant, who was homeless, had 330 points. The association had a new development of properties available to allocate and decided to reserve them for transfer cases. The properties were allocated to tenants with fewer points than the claimant and he sought a judicial review. The High Court decided that the association was amenable to judicial review and that the allocation decisions were unlawful. They had not accorded with the rules of the scheme. The court declined to disturb the lettings of two of the three properties. It decided that in relation to the third, where the incoming tenant had not moved-in, the allocation decision should be retaken on a proper basis. For the judgment, click here.

R (Testamicael) v Local Government Ombudsman [2013] EWCA Civ 1183
14 August 2013

The applicant applied to Birmingham Council for accommodation on 29 December 2012, reporting that he was in fear of racist and anti-social behaviour towards himself and his family. On 25 January 2013 the council provided temporary accommodation under its homelessness duties. The applicant complained to the ombudsman (LGO) that the council had failed to provide interim accommodation between 29 December and 25 January. The LGO declined to determine the complaint as there was no evidence of any injustice. That was because there had been no further incidents between those dates. The applicant sought permission to apply for judicial review. That was refused by the High Court. The Court of Appeal likewise refused permission. Whether there was sufficient injustice to warrant investigation of a complaint was a matter within the LGO's discretion.

R (Zacchaeus 2000 Trust) v Secretary of State for Work & Pensions [2013] EWCA Civ 1202
31 July 2013

A charitable trust applied for a judicial review of the decision of the Secretary of State to Make the Rent Officers (Housing Benefit Functions) (Amendment) Order 2012 by which the limits of increases to local housing allowances had been set. The High Court rejected the claim and the charity appealed on the grounds that the order had been made beyond the powers of the Secretary of State and in breach of the public sector equality duty. The appeal was dismissed. The judge had been correct to hold that the Order had been made within the available powers and without breach of the duty.

Doncaster MBC v Winstanley [2013] EWHC 2957 (QB)
8 July 2013

The council took measures to restrain a breach of planning consent by the defendant who had established residential caravans on a hardstanding on agricultural land owned by him. It repeatedly prosecuted for breach of enforcement notices but the fines imposed remained unpaid. It applied for an injunction requiring the land to be cleared. The High Court granted that order but again the defendant failed to comply. At a final hearing, the defendant indicated that if given another 28 days he would clear the land. The High Court imposed a 12-month committal order suspended for 28 days and said, "If so much as one granule of hard-core remains on the site more than four weeks from today he will go to prison for 12 months".

R (Communities United Party) v Newham LBC [2013] EWHC 3028 (Admin)
11 June 2013

On 21 June 2012 the council resolved to adopt a district-wide selective licensing scheme for private landlords. It came into effect on 1 January 2013. On 8 March 2013 the claimant issued judicial review proceedings seeking to challenge the new scheme. The High Court refused permission to make the claim. It was well out of time. Any claim should have been made 'promptly' and in any event within three months of the decision i.e. by 21 September 2012.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2013] September Legal Action 26
For back issues of articles in this series, click here.
To read the current article, click here (LAG subscribers only).

Help for council tax payers - Part 2: defending council tax defaulters
A. Berry
[2013] September Legal Action 23
To read the article, click here (LAG subscribers only).

The role of Article 8 in residential possession claims made by individuals and companies
J. Luba
[2013] 17 Landlord & Tenant Review 170

Damages for Disrepair - an update
A. Riley
[2013] 17 Landlord & Tenant Review 174

Tenancy deposits again - a case too far?
J. S. del Ceno
[2013] 17 Landlord & Tenant Review 187

House of Cards? (service charges)
O. Radley-Gardner
[2013] 163 New Law Journal No.7578 p15

Protecting private lives (new Housing Bill for Scotland)
S. Evans
[2013] Inside Housing 9 October
To read the article, click here.

Costly Business (compensation for homeless placed in B&B)
H. Spurr
[2013] Inside Housing 30 September
To read the article, click here.

Licence to thrill (selective licensing in the private sector)
K. Kirkbride
[2013] Inside Housing 11 October
To read the article, click here.

"Constructing" a Notice to Quit
I. Loveland
[2013] Conveyancer and Property Lawyer 403

Possession proceedings and human rights: something more required
S. Bright
[2013] Conveyancer and Property Lawyer 422

What price trespass? Eaton Mansions v Stinger
J. Chew
[2013] Conveyancer and Property Lawyer 439

The right to manage and appurtenant property
[2013] Conveyancer and Property Lawyer 447

The eviction of homeless applicants accommodated pending inquiries
V. Jacob
[2013] Local Government Lawyer 19 September
To read the article, click here.

Exercise of treaty rights by EU nationals
J. Auburn and B. Tankel
[2013] Local Government Lawyer 3 October
To read the article, click here.

Residential Property Update
B. Walkinshaw
[2013] 157 Solicitors Journal No.38 p30

Local Government Update
D. Martin et al
[2013] 157 Solicitors Journal No.38 p33

Housing Law Books

Housing Allocation and Homelessness (Third Edition) by Liz Davies and Jan Luba QC. For information on how to get the book, click here.

Housing Law Events

This Week

Allocations Conference
17 October 2013
A Lime Legal conference in London (speakers include Jan Luba QC and Liz Davies)
For more details, click here.

Next Week

The Northern Housing Conference
22 October 2013
A conference in Manchester (speakers include Alex Offer)
For more details, click here.

What's mine is yours: Love interests, property interests and other property problems
24 October 2013
A Garden Court Chambers evening seminar for advisers
For more details, click here.

SHLA Annual Housing Conference
25 October 2013
A conference in London for SHLA members
For more details, click here.

This Autumn

Gypsy and Traveller Law Update
29 October 2013
A LAG training event in Birmingham (speakers include Marc Willers)
For more details, click here.

What's the use of Article 8?
7 November 2013
A Garden Court Chambers evening seminar for advisers
For more details, click here.

Allocations, lettings and homelessness
19-20 November 2013
A Chartered Institute of Housing conference (speakers include Liz Davies)
For more details, click here.

Housing law update
20 November 2013
A HLPA Members evening seminar
For more details, click here

ASB & Social Housing Conference
22 November 2013
A Lime Legal conference in London (speakers include Jan Luba QC)
For more details, click here.

Housing & Residential Property Mediation Conference
26 November 2013
A dispute resolution conference in London
For more details, click here.

Annual Housing Law Conference
10 December 2013
A HLPA conference in London, with Jan Luba QC speaking.
For more details, click here.

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